Being party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention), Russia guarantees recognition and enforcement of arbitral awards in its territory under provisions and binding regulations of the Law of the Russian Federation On International Commercial Arbitration No. 5338-1 of 7 July 1993 (as amended on 3 December 2008) (Law on ICA). Interim measures granted by state courts are regulated primarily by the APC. The former judicial authority on commercial disputes, the now abolished Supreme Arbitrazh Court of the Russian Federation, issued several landmark positions which are relevant. These are discussed below.
Practitioners should also keep in mind that on 25 January 2012 the State Duma of the Russian Federation adopted Draft Law No. 583004-5 (Draft Law), amending the Law on ICA.
The changes introduced by the Draft Law seek to amend the Law on ICA in accordance with the latest edition of the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), as of 2006, .The approach to interim measures is the distinguishing feature of these amendments.
Role of domestic interim measures issued in support of international commercial arbitration
The use of international commercial arbitration as an effective tool of alternative dispute resolution by Russian businesses has increased significantly during the last decade.
Even though this method of dispute resolution can be quite costly and complex, its pros—namely high qualifications, impartiality and independence of arbitrators, flexible procedure, and, perhaps most importantly, confidentiality—are swaying more and more businesses towards arbitration.
Interim measures granted by state courts in support of international commercial arbitration are a relatively new feature in dispute resolution, particularly in Russia. Despite the fact that Russia is one of the original signatories of the New York Convention, arbitrazh courts (state commercial courts) have been, historically, reluctant to recognise and enforce foreign judgments, broadly interpreting public policy exception under art V(2)(b) of the convention.
The policy of non-recognition left its trace in the field of international commercial arbitration. As a rule of thumb, interim measures issued by foreign courts and arbitral tribunals are not enforceable in Russia because they don’t meet the criteria of finality and are not 'awards on the subject matter of the case', as required by clause 26 of Information Letter No. 78 of the Presidium of the Supreme Arbitrazh Court, dated 7 July 2004 and clause 33 of the Ruling of the Plenary session of the Supreme Arbitrazh Court of the Russian Federation No. 55 rendered on 12 October 2006.
In AB Living Design (Sweden) v Sokos Hotels St. Petersburg (Russian Federation) (ruling of the Presidium of the Supreme Arbitrazh Court of the Russian Federation, No 6447/10, 5 October 2010) (not available in Lexis®Library) the Supreme Arbitrazh Court confirmed that since an interim award issued by the arbitration tribunal is of preliminary character and can be subsequently amended by the tribunal, it cannot be enforced via the New York Convention.
The court also expressed the concern that awards on interim measures are rendered in summary fashion and without proper and in-depth examination of the available evidence.
The Law on ICA confers its jurisdiction on international arbitration tribunals located in the territory of Russia, ie with a Russian 'seat', apart from arts 8–9 and 35–36, which apply irrespective of the seat of the arbitration. Law on ICA clauses dedicated to interim measures, namely 9 and 17, mirror the provisions of the Model Law. Article 9 is of special relevance since it gives parties to the arbitration the power to seek interim measures in support of international commercial arbitration from the arbitrazh court.
Specifically, according to art 9 of the Law on ICA It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure'.
Meanwhile, art 90(3) of the APC provides that 'the arbitrazh court at the location of the arbitration tribunal or at the location or residence of the debtor or the debtor’s property may grant interim measures upon the motion of a party in arbitral proceedings'.
Citing art 90(3) in AB Living Design (Sweden), the Supreme Arbitration Court clarified that refusal to enforce interim measures issued in arbitration in itself does not preclude a party from applying for interim measures from the state courts.
Therefore the parties are able to use interim measures issued directly by Russian arbitrazh courts to leverage their advantage in ongoing international commercial arbitration.
The principles laid down in Edimax Limited (Cyprus) v S.P. Chigirinsky (Russian Federation) (No. A40-19/09-0T-13) (not available in Lexis®Library) are of particular interest here.
After failing to recover losses suffered from an unperformed contractual obligation via personal guarantee, issued by the defendant for the benefit of his company, Edimax simultaneously filed a suit with LCIA for damages and the Moscow Arbitrazh Court for a freezing order on the defendant’s assets in support of ongoing arbitration.
The Moscow Arbitrazh Court (first instance) took a formalistic approach and dismissed the suit, reasoning that art 90 APC does not expressly provide for the right of the arbitrazh court to issue interim measures in support of international commercial arbitration. Edimax managed to overturn the decision in its favour in the appellate court (Arbitrazh Appeal Court). Then the defendant’s wife, arguing that the court of appeal lacked jurisdiction to hear the case because Mr Chigirinsky had issued a guarantee in his personal capacity, successfully annulled the appeal court’s decision.
In the hearing before the Supreme Arbitrazh Court of the Russian Federation Edimax maintained that the courts had incorrectly applied the law. That final appeal was successful and the case was once again directed at the cassation court, which upheld the freezing order.
Although the primary legal issues discussed by the Supreme Arbitrazh Court concerned the possibility of conferring jurisdiction of the arbitrazh court on the individual after a divorce, the important collateral conclusion was that it is possible to protect the assets located in Russia during international commercial arbitration by obtaining interim measures directly from Russian state courts. In such a case, general rules governing interim measures in domestic litigation should be applied.
Overview of arbitrazh courts practice concerning cases involving foreign parties
The reasoning underpinning the cassation award in Edimax was recently upheld in the Information Letter of the Presidium of the Supreme Arbitrazh Court of the Russian Federation No. 158 dated 9 July 2013 'Overview of arbitrazh courts practice concerning the cases involving foreign parties'.
It is important to note that the Supreme Arbitrazh Court directs lower courts to take into account whether the party complies with interim measures issued by the tribunal voluntarily when considering the application for domestic remedy in support of arbitration. Arbitrazh courts are instructed to decline a motion for interim measures unless the plaintiff presents evidence that the interim award rendered by the tribunal is insufficient and not being complied with (clause 24 of the Information Letter of the Presidium of the Supreme Arbitrazh Court dated 7 July 2004).
Furthermore, in clause 32 of the same letter, the Supreme Arbitrazh Court elaborated that anti-suit injunctions issued by foreign courts have no impact on the arbitrazh court’s jurisdiction over the dispute. The court elaborated that the principle of sovereignty also meant that 'equal has no power over equal' and, therefore, the court of one state cannot compel the court of another state to perform or refrain from performing certain actions.
Applying that logic in the field of international commercial arbitration, it seems that 'fork-in-the-road' provisions which preclude the party from litigating a dispute once arbitration has been initiated will not be recognised by arbitrazh courts. More precisely, if an arbitral tribunal relies on the fork-in-the-road provision to issue an interim award preventing a party from suing in arbitrazh courts, such an award will be deemed without consequence.